Roberts’s Chill Heart

Is John Roberts worth a fight?

By

July 28, 2005

Is Judge John Roberts worth a fight? That’s the question Senate Democrats and civil rights lobbyists were asking as the amiable nominee made his let’s-get-acquainted rounds on Capitol Hill. To put it bluntly: With Judge Roberts’s reputation as a skilled and unimpeachable Supreme Court litigator, with his long bipartisan list of Washington friends, with George W. Bush sure to appoint another conservative if he’s defeated, why bother?

Call as witness Ansche Hedgepeth, a 12-year-old girl who in 2000 made the mistake of eating a french fry on the Washington Metro while police were in the midst of a quality-of-life crackdown. Officers arrested Ansche, handcuffed her, threw her in the back of a squad car and kept her in lockup for three hours. This big-government approach to childrearing offended Ansche’s mother as well as the conservative Rutherford Institute of Virginia, which sued on her behalf. The case ended up before Judge Roberts, who refused to expunge her record. Why? Arresting Ansche, he wrote, advanced “the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.”

How will this judge, who endorses the manacling of a youngster over a snack, rule when confronted with the profound civil liberties challenges of the “war on terror”? We don’t need to speculate. The day after his interview with Bush, Roberts and two other Reagan/Bush appointees on the DC Circuit reinstated military tribunals at Guantánamo–ruling that courts have no authority to review the White House’s determination to deny those prisoners Geneva Convention protections.

Together these two very different cases give the lie to any suggestion that Judge Roberts lacks a track rec­ord. Enthusiastic expansion of the power of the executive branch, whether in the guise of policing or the presidency, is the most consistent thread of Roberts’s career. In this sense he’s no conservative; he’s an apostle of big and often unreviewable government–the perfect nominee for a White House that excluded military lawyers, the State Department and even John Ashcroft’s top aides from the inner circles of post-9/11 justice policy. The Guantánamo ruling was a stunning embrace of the Administration’s expansive view of presidential power, placing the Guantánamo tribunals beyond reach of Congress or courts. It is a refutation, as well, of international law, stripping courts of the ability to enforce a treaty, with backwash over other key cases destined for the Supreme Court. Detainees in Guantánamo held without charge have cases coming before the DC circuit in a few weeks, and José Padilla, the American held in the brig as an “enemy combatant,” is not far behind. No wonder Roberts–wired for life into the GOP patronage network–became the Administration’s top choice.

Another lie about Roberts’s nomination is the notion that his most contentious statements should be written off as a lawyer’s responsibility to his clients, not reflections of personal conviction. Exhibit A in this argument is Roberts’s now-famous footnote in Rust v. Sullivan, the 1991 health clinic “gag rule” case in which he argued as deputy solicitor general that Roe v. Wade was “wrongly decided and should be overruled.” Just doing my job, just reflecting Administration policy, Roberts said in his 2003 confirmation hearing as an appellate judge–a line repeated by Republicans and Democrats alike in recent days. In fact, the Rust v. Sullivan footnote went so far and so enthusiastically outside any argument relevant to the case that Roberts might fairly be accused of politicizing his briefs. But leave that aside. The real issue is that Roberts was hardly a passive receptacle, a mouthpiece without conviction. At the time of Rust v. Sullivan Roberts had been designated by Ken Starr as his “political” deputy–running interference on sensitive policy issues that otherwise would have been left to career officials. It was a job that didn’t exist in either the Carter or Clinton administrations. The White House and Starr trusted Roberts not just to reflect legal policy but to make it.

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Which gets us to another lie. At this writing the White House has agreed to release some historical documents from the Reagan years, but it claims that Roberts’s memos as deputy solicitor general are a matter of attorney-client privilege. But attorney-client privilege ends where policy-making begins. The Judiciary Committee has every reason to wonder about the role of the political deputy. Senators have every reason to inquire about the language Roberts used when crafting that argument against Roe. The reasoning a Supreme Court nominee brought to fighting against strong Voting Rights Act enforcement, to ending school desegregation and to stripping Congress of oversight of federal environmental enforcement are all matters of public concern.

Roberts’s professional biography suggests that every political choice he has made has been partisan and often rigidly ideological, from his clerkship with William Rehnquist through his role as a Republican adviser in Bush v. Gore. (Memo to Judiciary Committee: There’s nothing out of bounds in asking Roberts’s view of that case and whether he thinks the Supreme Court majority’s ruling amounted to judicial activism.) Vigorous opposition to Roberts offers a powerful lesson on the intersection of politics and law in Bush’s Washington. Bush may not have had a “litmus test” on Roe v. Wade, but he was precise about the political chemistry of his nominees. It’s revealing that virtually all those floated as Supreme Court finalists were members of the Federalist Society. Roberts may not–or may–have been a member (at this writing the White House uses the deniable “no recollection” to explain why his name shows up in the group’s confidential leadership directory for 1997-98), but between 1999 and 2003 his main professional association was with the fiercely antiregulatory National Legal Center for the Public Interest. As a judge he’s written that the Endangered Species Act should not apply to a California toad because it doesn’t cross state lines–a view of federal authority so extreme it would prohibit the EPA from getting involved in purely local landfills or chemical dumps.

Is Roberts’s confirmation a foregone conclusion? There are still several weeks before hearings and a likely Senate vote, and his would not be the first nomination to take an unexpected turn. At this point in 1991 the Clarence Thomas nomination seemed unassailable, and in 1986 few seriously believed that Robert Bork would go down to defeat. Roberts’s record and his biography may yet reveal additional troubling details.

Is it worth expending energy, emotion and money to oppose Roberts? Let’s return to Ansche Hedgepeth and her french fry arrest. It may seem absurd to suggest that such a trivial case disqualifies a judge from a seat on the Supreme Court. Yet Roberts, in that case as in others, embraces a quietly authoritarian vision of social control that should raise alarm bells on both the right and the left. Managing to wring out of the law any vestige of sensible, pragmatic humanity, Roberts saw instead only the imperative to maintain ideological consistency. This is not “compassionate conservatism.” If “advise and consent” means anything, it is that senators and the constituencies that agitate behind them have every reason to oppose a lifetime Supreme Court appointment for that kind of chill heart.